Intellectual property and pop culture collide over the Labubu, this summer's hottest collectible
Wide-set eyes. High, pointy ears. A mischievous grin with nine teeth. Meet the Labubu, an elflike plush doll produced by Chinese toy company Pop Mart that is flying off the shelves.
On the market since 2019, the Labubus often come in “blind boxes” and have limited availability. This element of surprise and scarcity, coupled with their recent endorsement by singer Rihanna and other celebrities and influencers on TikTok, turned the doll into this summer’s must-have collectible.
The Labubus are so popular, in fact, that they have inspired a surge in knockoffs. According to the New York Times, social media influencers also champion “Lafufus” for their slightly off appearances, attainability and cheaper price tag.
Pop Mart did not respond to the ABA Journal’s request for comment for this story.
“Social media is both a blessing and a curse,” says Vivek Jayaram, an intellectual property lawyer and the founder of Jayaram Law, which has offices in Miami, Chicago and New York City. “You have literally hundreds of thousands of TikToks, and I imagine Instagram posts and Facebook posts, too, that are celebrating the Labubu and spreading the word about the Labubu.”
“But when something like this goes viral, it almost immediately creates a pretty robust online counterfeit market,” Jayaram adds.
“Social media is both a blessing and a curse,” says Vivek Jayaram, an intellectual property lawyer and the founder of Jayaram Law, which has offices in Miami, Chicago and New York City. “You have literally hundreds of thousands of TikToks, and I imagine Instagram posts and Facebook posts, too, that are celebrating the Labubu and spreading the word about the Labubu.” (Photo by Lucka Ngô)
He points to Squishmallows as another popular children’s toy that has been falsely replicated and sold online.
While the IP issues involving the Labubus aren’t exactly novel, Jayaram contends that the increasing acceptance of “dupes” is a new trend.
He says the word “dupe,” which is used colloquially to describe a product that closely resembles a more expensive or higher-end product, only recently entered IP lawyers’ vernacular. Previously, they referred to these products as infringing or unlawful copies—or counterfeits in certain cases.
“A dupe, in my view, almost celebrates the idea of a knockoff,” Jayaram says. “It’s something that flies in the face of federal law. And yet I feel like, culturally, they don’t occupy that place anymore. They occupy this place of, ‘Well, I can’t afford or don’t have time to find the authentic one. So I’m just going to buy the dupe.’”
This could present a challenge for companies that have to decide whether and how to enforce their IP rights against a competitor who may be benefiting their bottom line, Jayaram says. As an example, a purse sold by Walmart that resembles the iconic Hermès Birkin bag went viral and potentially impacted the recent sale of the original bag for a record-breaking $10 million at auction, he also says.
“One thing I’m seeing now in greater frequency than I did say 10 years ago is spending a lot of time with clients not on whether we have the right to enforce our IP against somebody but discussing whether we should,” says Jayaram, adding that companies have expressed concerns about consumer or cultural blowback from their enforcement actions.
At the same time, IP lawyers understand that consistent and successful enforcement could force counterfeiters to focus their efforts elsewhere, Jayaram adds. There are also consequences to not taking action against infringement.
“You can’t just let a dupe run wild because if you let a dupe run wild, in an extreme enough circumstance, you could actually forfeit or waive your IP rights,” Jayaram says.
Considering that, being proactive is the key to protecting a company’s brand, says Jayaram and other IP lawyers. In Pop Mart’s case, it has registered trademarks for its Labubu products and registered copyrights for related artwork, packaging and designs in the United States and internationally. Companies that infringe these rights could face civil and criminal penalties.
Pop Mart also can protect its Labubu dolls through trade dress and design patents, two forms of IP that focus on the appearance of a product, says Case Collard, a partner in the Denver office of Dorsey & Whitney. In his practice, he has been involved in asserting design patent rights for client TeeTurtle, which makes reversible plush stuffed animals.
“Design patents can be a really powerful tool, especially for products like [the Labubu], where there is something about the look of the product that is unique,” Collard says.
Collard emphasizes that companies—and especially companies with products that gain popularity quickly—should have a mix of IP rights to prepare for any situation.
“It’s about putting tools in your toolbox,” Collard says. “There’s not any sort of silver bullet. It’s about being thoughtful. … And thinking through some of the approaches to IP protection can be really valuable when it comes time for enforcement.”
Pop Mart can use several strategies to combat copycat Labubus. Because a lot of counterfeit dolls are imported from China and other countries, the toy company can record its Labubu trademark with U.S. Customs and Border Protection, says Geoffrey Goodale, a partner at Duane Morris in Washington, D.C. He is a member of the ABA Section of Intellectual Property Law’s council and incoming co-chair of the section’s Anti-Counterfeiting and Piracy Committee.
Then Pop Mart can educate Customs and Border Protection and lawyers in its IP rights branch on how to spot the differences between Labubus and fake versions at ports around the country, Goodale says. The federal agency helps crack down on counterfeit goods, including by seizing and destroying them.
“My understanding is that is what the Labubu trademark owner is doing,” Goodale says.
He particularly recommends these steps to clients who are bringing to market goods that were manufactured abroad.
“That way, they are able to get ahead of things, so there is not an onslaught of counterfeit goods being imported into the United States,” Goodale says.
Pop Mart also can sue the makers of counterfeit Labubus in federal court under the Lanham Act, which prohibits the unauthorized use of registered trademarks or similar trademarks that are likely to confuse consumers. Goodale points out that Pop Mart already filed one lawsuit against 7-Eleven and its franchises in the Central District of California for allegedly selling counterfeit versions of its doll.
According to its July 18 complaint, Pop Mart accuses the defendants of trademark and trade dress counterfeiting and infringement for “selling, displaying, distributing and marketing products and packaging that are identical or virtually identical and confusingly similar to the Pop Mart marks and the Labubu trade dress.”
Pop Mart also accuses defendants of copyright infringement for “displaying, distributing and selling products and packaging that are identical or virtually identical to and are substantially similar to” its copyrighted works.
Additional enforcement strategies that Pop Mart can use and is using are monitoring Amazon and other online platforms and notifying them when counterfeit goods become available to consumers, Goodale adds. Amazon, in particular, has a Counterfeit Crimes Unit that works to shut down sales of these goods. Cease-and-desist letters also could be sent to individual sellers.
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